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Table of contents back to top
I.
Article 1 back to top
A. Text of
Article 1
B. Interpretation and Application
of Article 1
1. Article 1.1:
“covered agreements”
2. Article 1.2:
“special or additional rules and procedures”
(a) General
(b) Article
17 of the Anti-Dumping Agreement
(c) Article
4.7 of the SCM Agreement
II.
Article 2 back to top
A. Text of
Article 2
B. Interpretation and Application
of Article 2
1. General
2. Rules of
procedures for the DSB meetings
3. Date of
circulation
4. Communications
with the DSB
5. Time-periods
6. Rules of
conduct
7. Negotiations
on the amendment of the DSU
III.
Article 3 back to top
A. Text of
Article 3
B. Interpretation and Application
of Article 3
1. Article 3.2
(a) “security
and predictability”
(b) “clarify
the existing provisions”
(c) “customary
rules of interpretation of public international law”
(i) Rules of
“interpretation”
(ii) Article 31
of the Vienna Convention: General rule of interpretation
(iii) Article
31(3)(b) of the Vienna Convention: Subsequent practice
(iv) Article
31.4: Specialized meaning
(v) Article
32 of the Vienna Convention: Supplementary means of interpretation
(vi) Good
faith
(vii) Principle
of effective treaty interpretation
(viii) Article
33 of the Vienna Convention: Plurilingual treaties
(ix) Presumption
against conflict
(x) Non-retroactivity
of treaties
(xi) State
responsibility
(xii) Legitimate
expectations
(xiii) Proportionality
(xiv) Precautionary
principle
(xv) Estoppel
(xvi) Status
of adopted GATT/WTO Panel and Appellate Body Reports
(d) “add
to or diminish the rights and obligations”
(e) Relationship
with other Agreements
(i) Article
17.6(ii) of the Anti-Dumping
Agreement
2. Article 3.3
(a) “measures
taken by another Member”
3. Article 3.6
(a) Notification
of mutually agreed solutions
4. Article 3.7
(a) “whether action under these procedures would be fruitful”
(b) “aim of the dispute settlement mechanism is to secure a
positive solution to a dispute”
(c) “suspending the application of
concessions or other obligations”
5. Article 3.8
(a) Presumption
of “nullification or impairment”
(b) Relationship
with other WTO Agreements
(i) Article
XXIII:1 of the GATS
(ii) Article
5(b) of the SCM Agreement
6. Article 3.10
(a) “good
faith … effort to resolve the dispute”
IV.
Article 4 back to top
A. Text of
Article 4
B. Interpretation and Application
of Article 4
1. General
(a) Importance of consultations
(b) Consultations as a prerequisite for panel proceedings
(c) Disclosure of information during consultations
(d) Adequacy of consultations
(e) Result of the consultations
(f) Challenging a request for consultations
2. Article 4.1
3. Article 4.3
4. Article 4.4
(a) Notification of requests for consultations
(b) Absence or addition of
“claims”
and/or “measures” in the request for consultations
(c) Effect of the extension of the duration of
identified measures after consultations
(d) Relationship between request for consultations
and request for the establishment of a panel
5. Article 4.6
(a) “consultations shall be
confidential”
(i) Information acquired during consultations
(ii) Relevance of third party participation in
confidentiality of information from consultations
(b) “consultations shall be … without
prejudice to the rights of any Member ”
6. Article 4.7
7. Article 4.9
8. Article 4.11
C. Relationship with other Articles
1. Article 6
D. Relationship with other WTO Agreements
1. Article 8.10 of the ATC
2. Article 17 of the Anti-Dumping Agreement
3. Article 4.2 of the SCM Agreement
V.
Article 5 back to top
A. Text of
Article 5
B. Interpretation and Application
of Article 5
1. WTO
Director-General’s offer of assistance
2. Mediation
outside the DSU
VI.
Article 6 back to top
A. Text of
Article 6
B. Interpretation and Application
of Article 6
1. General
(a) Multiple panels involving the same parties and
same claims
2. Article 6.2
(a) General
(i) Task of panels to examine requests for
establishment
(ii) Request must be sufficiently precise
(b) Right to bring claims
(i) Legal interest
(ii) Right to bring claims under Article 17.4 of
the Anti-Dumping Agreement.
3. Basic requirements under
Article 6.2
(a) General
(b) “indicate whether consultations were
held”and “matter referred to the DSB
(c) “identify the specific measure at
issue”
(i) “specific measures at issue”
(ii) Legal instruments as measures
(iii) General practice as a measure
(iv) Private action as a “measure”
(v) Standard for sufficient
“identification”
(vi) Measures falling within/outside the panel’s terms of reference
(d) “a brief summary of the legal basis of
the complaint … sufficient to present the problem clearly”
(i) Concept of “claim”
(ii) Two-stage test
(iii) Identification of the claims
(iv) Claims falling within/outside the panel’s terms of reference
(v) “presenting the problem clearly”
(vi) Clarity of claims in written submissions
(e) Demonstration of compliance with 6.2 requirements
(f) Importance of timing of a specificity objection
(i) Distinction between sufficiency of panel request and establishing a prima facie case of violation
(g) Relevance of the principle of good faith
C. Relationship with other Articles
1. Article 4
2. Articles 6.2 and 21.5
D. Relationship with other
WTO Agreements
1. Relationship
with Article 17 of the Anti-Dumping Agreement
(a) The term
“matter” under paragraphs 4
and 5 of Article 17
(b) Anti-dumping measures
(c) Legal basis for claims under Article 17
VII.
Article 7 back to top
A. Text of
Article 7
B. Interpretation and Application
of Article 7
1. General
(a) Importance of the terms of reference
(b) Instances where a panel must address jurisdictional issues
(c) Objections to the panel’s jurisdiction
(i) General
(ii) Timing of the objections to the panel’s jurisdiction
2. Article 7.1
(a) “the
matter referred to the DSB”
(i) Concept of
“matter”
(ii) Specific
measures at issue
(iii) Claims
3. Article 7.2
4. Article 7.3
(a) Special
terms of reference
VIII.
Article 8 back to top
A. Text of
Article 8
B. Interpretation and Application
of Article 8
1. Article 8.4: indicative list
of panelists
2. Articles 8.6 and 8.7: panel composition
IX.
Article 9 back to top
A. Text of
Article 9
B. Interpretation and Application
of Article 9
1. Article 9.1: “a single panel should be established
… whenever feasible”
(a) Relationship with other paragraphs of Article 9
(i) Article 9.2
2. Article 9.2: separate reports
(a) General
(b) Timing of the request for separate reports
(c) Panel discretion
(d) Structure of separate reports
(e) Relationship with other paragraphs of Article 9
(i) Article 9.1
3. Article 9.3: multiple panels
(a) Duplication of panel with same complainant
(b) Third-party rights for complainants in parallel proceedings
X.
Article 10 back to top
A. Text of
Article 10
B. Interpretation and Application
of Article 10
1. Article 10
(a) General
2. Article 10.2
(a) Enhanced
third-party rights
(b) “Substantial
interest”
3. Article 10.3
(a) “Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel”
4. Third-party rights in preliminary ruling proceedings
5. Third-party
rights under Article 22.6
6. Authority of
the panel to direct a Member to be a third party
7. Essential
parties
XI.
Article 11 back to top
A. Text of
Article 11
B. Interpretation and Application
of Article 11
1. Standard of
review under the DSU
2. “objective
assessment of the matter before it”
(a) “the matter before it”
(i) “General”
(ii) Finding on a claim not made by the complainant
(iii) Reference in Panel’s reasoning to provisions not included in the claims
(iv) Consideration
of parties’ arguments by the Panel
(iv) Due
process implications
(vi) Consultation
of experts
3. “objective
assessment of the facts”
(a) Extent of panels’ duty/discretion to examine the evidence
(i) Duty to examine all evidence
(ii) Panels’ discretion as trier and weigher of the facts
(iii) Egregious error calling into question the good faith of a panel
(b) Municipal law
(c) Drawing adverse inferences
(d) Timing of submission of evidence
(e) Temporal scope of the review
(f) Evidence obtained during consultations
(g) Relationship with Article 13
4. Objective assessment of whether the investigating authority’s explanation is reasoned and adequate: not a “de novo” review
5. “make such other findings”
6. Standard of review in trade remedy cases
(a) Agreement on Safeguards
(i) Application of general standard of review under Article 11 of the DSU
(ii) Objective assessment of whether the investigating authority’s explanation is reasoned and adequate: not a “de novo” review
(b) Transitional safeguard measure under the Agreement on Textiles and Clothing
(i) Application of general standard of review under Article 11 of the DSU
(c) Anti-dumping measures
(d) Countervailing measures
(i) Application of general standard of review under the DSU
7. Dissenting/separate opinions
8. Relationship with other Articles
(a) Articles 12 and 13
(b) Article 19
9. Relationship with
non-WTO law
XI.
Article 12 back to top
A. Text of
Article 12
B. Interpretation and Application
of Article 12
1. Article 12.1: Working Procedures
2. Article 12.2: flexibility
3. Article 12.6
(a) “submissions”
(i) Legal right to have a submission considered by
the Panel
(ii) Meaning of the term “second written submission”
(b) “Any subsequent written submissions shall be
submitted simultaneously”
4. Article 12.7
(a) “basic
rationale behind any findings and
recommendations”
5. Articles 12.8 and 12.9: deadlines for Panel review
(a) General
(b) Notification of delay in the issuance of a panel
report to the parties
6. Article 12.10
(a) “the panel shall accord sufficient time for the
developing country Member to prepare and present its argumentation”
7. Article 12.11
(a) Explicit indication in the panel’s report of
how special and differential provisions were taken into account
XIII.
Article 13 back to top
A. Text of
Article 13
B. Interpretation and Application
of Article 13
1. Article 13.1
(a) “right
to seek information and technical advice from any individual or
body”
(b) Right to
disregard information submitted
(c) “A
Member should respond promptly and fully to any request by a panel for
such information as the panel considers necessary and appropriate”
2. Article 13.2
(a) “seek
information from any relevant source”
XIV.
Article 14 back to top
A. Text of
Article 14
B. Interpretation and Application
of Article 14
XV.
Article 15 back to top
A. Text of
Article 15
B. Interpretation and Application
of Article 15
1. Scope of the interim review
2. Confidentiality of interim reports
3. Introduction of new evidence at the interim review
stage
XVI.
Article 16 back to top
A. Text of
Article 16
B. Interpretation and Application
of Article 16
1. Article 16.4
(a) Time-period under Article 16.4
XVII.
Article 17 back to top
A. Text of
Article 17
B. Interpretation and Application
of Article 17
1. General
2. Article 17.1
(a) Establishment
of the Appellate Body
3. Article 17.2
(a) Appointment
of Members of the Appellate Body
4. Article 17.5
(a) “In no case shall the proceedings exceed 90
days”
(b) Extension of deadline for circulation of
Appellate Body Report
5. Article 17.6: scope of appellate review
(a) “issues of law … and legal interpretations”
(i) Factual findings versus legal findings
(ii) Relevance of the characterization of a finding
by the Panel
(iii) Statements of panels not amounting to “legal
findings”
(iv) Review of new issues
(v) Review of new arguments
(vi) Review of new facts
(b) “Completing the analysis”
6. Article 17.9: Working procedures of the Appellate
Body
(a) “Working procedures shall be drawn up by the
Appellate Body”
7. Article 17.11: concurring opinions (Rule 3.2)
8. Article 17.13: “may uphold, modify or reverse
the legal findings and conclusions of the panel”
XVIII.
Article 18 back to top
A. Text of
Article 18
B. Interpretation and Application
of Article 18
1. Article 18.2
(a) Disclosure
of “written submissions”
(i) Difference between “submissions” and “statements”
(ii) Timing of the disclosure
(b) Non-confidential versions of written submissions
(c) Business confidential information (BCI)
(d) Confidentiality implications of private counsel’s
intervention
(i) General
(ii) Joint representation
XIX.
Article 19 back to top
A. Text of
Article 19
B. Interpretation and Application
of Article 19
1. Article 19.1
(a) “bring
the measure into conformity with that agreement”
(i) Measure in force
(ii) Measure no longer in existence
(iii) Relevance of events that occurred during the
proceedings
(b) “the panel … may suggest ways in which the
Member concerned could implement the recommendation”
(i) Panel’s discretion to suggest ways to implement
General Suggestions made by Panel of ways to implement Panel declines to suggest ways to implement
(ii) Choice of means of implementation
(iii) Surveillance of implementation
2. Article 19.2
3. Relationship with other Articles
(a) Article 11
(b) Articles 16, 21 and 22
4. Relationship with other WTO Agreements
(a) Article 4.7 of the SCM Agreement
XX.
Article 20 back to top
A. Text of
Article 20
B. Interpretation and Application
of Article 20
XXI.
Article 21 back to top
A. Text of
Article 21
B. Interpretation and Application
of Article 21
1. Article 21.1
(a) “prompt compliance”
(i) Concept of compliance
(ii) Promptness of compliance
2. Article 21.2
(a) “interests of developing country Members”
3. Article 21.3(c)
(a) Mandate of the arbitrator
(b) “reasonable period of time”
(i) Availability of the reasonable period of time
(ii) Concept
of “reasonableness”
(iii) Length of the reasonable period of time
(iv) The application of WTO-inconsistent measures
during the reasonable period of time
(v) Exception: prohibited subsidies
(c) “particular circumstances”
(i) Concept of “particular circumstances”
(ii) Relevance of “particular circumstances”
(iii) Factors amounting to “particular
circumstances”
(iv) Factors not qualifying as “particular
circumstances”
(v) Burden of proof
(d) Relationship with Article 22
(e) Participation by all the original parties
(f) Relationship with other WTO Agreements
(i) SCM Agreement
4. Article 21.5
(a) Function and scope of Article 21.5 proceedings
(b) The “matter” in Article 21.5 proceedings
(i) General
(ii) Measures concerned by Article 21.5 panel
proceedings: measures taken to comply
(iii) Claims in Article 21.5 proceedings
(c) “through recourse to these dispute settlement
procedures”
(i) General
(ii) Timing of the establishment of Article 21.5
panels
(iii) Parties’ submissions
(iv) Third-party rights: access to second written
submissions by third parties
(d) Burden of proof
(e) List of disputes under Article 21.5
5. Ad hoc agreements on procedures under Articles 21
and 22 concluded by parties
(a) The sequencing issue
(b) Sequencing solutions in ad hoc procedural
agreements
(i) Recourse to Article 21.5 before initiating
Article 22 proceedings
(ii) Simultaneous Articles 21.5 and 22 proceedings
(iii) Agreement not to appeal the compliance report
(iv) Withdrawal of Article 22 arbitration request
(v) Direct recourse to Article 22
(vi) Agreement not to object to arbitration under
Article 22.6
(vii) Non-application of the 30-day deadline in first
sentence in Article 22.6
(c) Consultations
(d) Establishment of the panel
(e) Appointment of panellists
(f) Participation of experts
(g) Cooperation to ensure time-limits for the work of
the compliance panel and Appellate Body are respected
(h) Non-prejudice of the parties’ other rights
(i) List of ad hoc agreements
(j) Panel’s scope of review of procedural
agreements
6. Relationship with other Articles
(a) Article 6.2
(b) Article 12.7
XXII.
Article 22 back to top
A. Text of
Article 22
B. Interpretation and Application
of Article 22
1. General
(i) Nature
and purpose of countermeasures
(ii) Bilateral procedural agreements
(iii) Confidential information
2. Article 22.1
3. Article 22.2
(a) Specificity in the request for suspension of
concessions or other obligations
(i) Application of Article 6.2 specificity
requirement
(ii) Minimum specificity requirements
(b) “concessions or other obligations under the
covered agreements”
(i) Tariff “concessions”
(ii) “Obligations”
4. Article 22.3
(a) Scope of review by arbitrators under Article 22.3
(b) “the complaining party shall apply the
following principles and procedures”
5. Article
22.3(a)
(a) “general principle … complaining party should
first seek to suspend concessions or other obligations with respect to
the same sector(s)”
(i) General
(ii) Parallelism between violations and requests for
suspension of concessions
(b) Scope of review of arbitrators under Article
22.5(a)
6. Article 22.3(b) and
(c)
(a) “if that party considers that it is not
practical or effective”
(b) Relationship between Article 22.3(a) and 22.3(c)
7. Article 22.4
(a) “The level of the suspension of concessions or
other obligations … shall be equivalent to the level of the
nullification or impairment”
8. Article 22.6
(a) Specificity in the request for a referral to
arbitration under Article 22.6
(b) “by the original panel, if members are
available, or by an arbitrator appointed by the Director-General”
(c) Burden of proof
(i) General
(ii) Burden of proof in subsidy arbitrations under
Article 4.11 of the SCM Agreement
(d) Preliminary rulings
(e) Third-party rights
(f) Working procedures in Article 22.6 arbitrations
(g) List of Article 22.6 arbitration proceedings
9. Article 22.7
(a) The mandate of the Arbitrators
(b) “The arbitrator … shall determine whether the
level of such suspension is equivalent to the level of nullification or
impairment.”
(i) Assessment of the level of nullification or
impairment
(ii) Assessment of the level of suspension of
concessions
(iii) Standard of equivalence
(c) Exception: standard of appropriateness in subsidy
arbitrations
(d) Separate opinions
(e) Suspension of concessions awarded under
arbitration
10. Relationship with other Agreements
(a) Arbitrations pursuant to Articles 4.10 and
4.11 of the SCM Agreement
(i) Special or additional rules
(ii) Exception to the requirement of equivalence to
the level of nullification or impairment
(iii) Concept of “appropriate countermeasures”
(iv) Arbitrators’ mandate pursuant to Article 4.11
XXIII.
Article 23 back to top
A. Text of
Article 23
B. Interpretation and Application
of Article 23
1. General
2. Article 23.1
(a) “seek[ing] the redress of a WTO
violation”
(b) “recourse to, and abide by”
3. Article
23.2(a)
4. Article
23.2(c)
(a) General
(b) Relationship with other provisions of the DSU
(i) Article 3.7
5. Relationship with other WTO Agreements
(a) SCM Agreement
XXIV.
Article 24 back to top
A. Text of
Article 24
B. Interpretation and Application
of Article 24
XXV.
Article 25 back to top
A. Text of
Article 25
B. Interpretation and Application
of Article 25
1. General
(a) Scope of the
Arbitrators’ mandate under
Article 25
(b) Jurisdiction of the Arbitrators under Article
25
(c) Burden of proof in Article 25 arbitrations
(d) Matters dealt under Article 25 arbitrations
(i) Nullification or impairment of benefits
(e) Right to seek and disregard information
(f) Treatment of confidential information
2. Article 25.1
(a) “expeditious arbitration … as an
alternative means of dispute settlement”
(b) Differences compared with panel proceedings
3. Article 25.2
(a) Arbitration under Article 25 should only be
excluded when expressly provided
4. Article 25.4
(a) General
(b) “Articles 21 and 22
…. shall apply
mutatis mutandis”
5. Relationship with other Articles
(a) Article 3.3
(b) Article 21
(c) Article 22.2
(d) Article 22.6
XXVI.
Article 26 back to top
A. Text of
Article 26
B. Interpretation and Application
of Article 26
1. Article 26.1
(a) “detailed justification in support of any
complaint”
2. Jurisprudence under Article XXIII:1(b)
C. Relationship with other WTO Agreements
1. Article XXIII:1(a) of the GATT 1994
2. Article XXIII:1(b) of the GATT 1994
XXVII.
Article 27 back to top
A. Text of
Article 27
B. Interpretation and Application
of Article 27
XXVIII.
Appendix 1: Agreements covered by the DSU back to top
A. Text of
Appendix 1
B. Interpretation and Application
of Appendix 1
XXIX.
Appendix 2: Special or Additional Dispute Settlement Rules and Procedures
back to top
A. Text of
Appendix 2
B. Interpretation and Application
of Appendix 2
XXX.
Appendix 3: Panel Working Procedures back to top
A. Text of
Appendix 3
B. Interpretation and Application
of Appendix 3
1. General
(a) Appendix 3 and the panel’s margin of discretion
(b) Working procedures as a means to ensure due
process
2. Paragraph 3: non-confidential versions of written
submissions
3. Paragraph 11: additional procedures
(a) Separate reports
(b) Composition of parties’ delegations
(c) Business confidential information
(BCI)
(d) Preliminary rulings
(i) General
(ii) Procedures
(e) Participation of third parties in preliminary
ruling proceedings
(f) Executive summaries
4. Timetable
(a) General
(b) Deadline for affirmative defence
(c) Timing of the submission of evidence
(d) Timing for raising objections to panels’
jurisdiction
(e) Timing for the filing of submissions with the WTO
Dispute Settlement Registrar
XXXI.
Appendix 4: Expert Review Groups back to top
A. Text of
Appendix 4
B. Interpretation and Application
of Appendix 4
XXXII.
Working Procedures for Appellate Review back to top
A. Text of
Working Procedures for Appellate Review
B. Interpretation and Application
of the Appellate Body Working Procedures
1. General
2. Appellate Body’s authority to adopt procedural
rules
3. Appellate Body’s authority to disregard its
Working Procedures
4. Interpretation of the Working Procedures
5. Rule 3.1: decision-making
6. Rule 3.2: concurrent opinions
7. Rule 8: rules of conduct
8. Rule 13: replacement of Appellate Body member in a
given appeal
9. Rule 16
(a) Rule 16(1): “appropriate procedure for the
purposes of that appeal only”
(b) Rule 16(2): “exceptional circumstances”
(c) Rule 16(2): change of date
10. Rule 20: notice of appeal
(a) Purpose of the notice of appeal
(b) Rule 20(2)(d): “brief statement of the nature
of appeal, including the allegations of error”
(i) Identification standard
(ii) Distinction between “claims of error” and
“legal arguments”
(iii) Claims not included in the notice of appeal
(iv) Amendment of the notice of appeal
(v) Replacement of a notice of appeal
(vi) Article 11 of the DSU: allegation of a panel’s
failure to make an objective assessment
11. Rule 23: multiple appeals (cross appeal)
(a) Conditional appeals
12. Rule 24: third participants
13. Rule 26: working schedule
(a) Extension of deadline for participants’ or
third participants’ submissions
(b) Extension of deadline for circulation of
Appellate Body Report
14. Rule 27: oral hearing
(a) Change of date
(b) Joint oral hearing
15. Rule 28: written responses
16. Rule 30(1): withdrawal of appeal
(a) General
(b) Nature of the right to withdraw an appeal
(c) Legality of a conditional withdrawal of an appeal
(d) Replacement of a notice of appeal
XXXIII.
Working Procedures for Article 22.6 Arbitrations
back to top
A. Text of the
Working Procedures for Article 22.6 Arbitrations
B. Interpretation and Application of the
Working Procedures
1. Admissibility of new evidence
2. Admissibility of new arguments
3. Confidential/non-confidential versions of the
Arbitrators’ decision
XXXIV. Rules of
Conduct for the Understanding on Rules and Procedures Governing the
Settlement of Disputes back to top
A. Text of the
Rules of Conduct
B. Interpretation and
Application of the Rules of Conduct
XXXV. Rules of
Procedure for Meetings of the Dispute Settlement Body
back to top
A. Text of the
Rules of Procedure
B. Interpretation and
Application of the Rules of Procedure
1. Adoption
2. Reference to General Council procedures
XXXVI. Other
Issues in WTO Dispute Settlement Proceedings
back to top
A. Order of
Analysis
1. Provisions of different WTO Agreements
(a) Test: Agreement that deals specifically and in
detail with the measure at issue
(i) GATT 1994 versus Licensing Agreement
(ii) GATT 1994 versus SPS Agreement
(iii) GATT 1994 versus TBT Agreement
(iv) GATT 1994 versus Agreement on Agriculture
(v) GATT 1994 versus SCM Agreement
(vi) GATT 1994 versus TRIMs Agreement
2. Provisions within the same Agreement
(a) GATT 1994
(i) Articles III and XI
(b) GATS
(i) Annex on Telecommunication and Member’s
Reference Paper on Commitments
(c) SCM Agreement
(i) Articles 1.1 and 3.1(a)
(ii) Articles 3.1(a) and 27.4
(d) TRIPS Agreement
(i) Articles 33 and 70
B. Due
Process in WTO Dispute Settlement Proceedings
1. Standard panel working procedures as a tool to
ensure due process
2. Due process demands when identifying the measures
and claims at issue
3. Identification of appealed measures
4. Right of response
C. Preliminary
Rulings
1. General
(a) Lack of regulation in standard working procedures
(b) Absence of a requirement to rule on a preliminary
basis
(c) Preliminary ruling procedures followed in certain
disputes
(d) Participation of third parties in preliminary
ruling proceedings
(e) Preliminary rulings in Article 22.6 Arbitrations
2. Parties’ objections
3. Issues that have been the object of a preliminary
objection
(a) Adequacy of consultations
(b) Compliance of panel request with Article 6.2
requirements
(c) Panel composition
(d) Panel’s jurisdiction
(i) Measures withdrawn before establishment of the
Panel
(ii) Double fora
(iii) Claims outside the panel’s terms of reference
(e) Clarity of claims in written submissions
(f) Evidence
(i) Timing of the submission of evidence
(ii) Information not made available to the
investigating authorities
(g) Third-party rights
(i) Third-party participation in preliminary
proceedings
(ii) Access to second written submissions by third
parties in Article 21.5 proceedings
(h) Confidentiality
(i) Breach of confidentiality of the consultation
process
(ii) Disclosure of written submissions
(iii) Non-confidential versions of written
submissions
(iv) Business confidential information
(v) Confidentiality concerns when private counsel
intervene
(i) Private counsel
(j) Panel’s timetable
(k) Executive summaries
(l) Meaning of the term “second written submissions”
(m) Timing for the filing of submissions in panel
proceedings
(n) Amicus curiae
4. Timing
(a) Promptness of objections
(b) Timing of the preliminary ruling
D. Burden of
Proof
1. The rule on burden of proof
2. Evidence and arguments remain in equipoise
3. Establishing a prima facie case
(a) What is a prima facie case?
(b) Source of evidence for a prima facie case
(c) No need to state explicitly that a prima facie
case has been made.
4. Relevance of the difficulty of collecting
information to prove a case
5. Necessary collaboration of the parties
6. Relationship between the burden of proof and a
panel’s fact-finding mandate
7. Relevance of the mandatory/discretionary
distinction
8. Application of the burden of proof in the context
of a given WTO Agreement
(a) Burden of proof in the GATT 1994
(b) Burden of proof under the Enabling Clause
(c) Burden of proof in the SPS Agreement
(i) Burden of proof in the context of Article 2.2 of
the SPS Agreement
(d) Burden of proof in the SCM Agreement
(e) Burden of proof in the TRIPS Agreement
(f) Burden of proof in the TBT Agreement
(g) Burden of proof in the Agreement on Agriculture
(h) Burden of proof in Article 21.3(c) arbitrations
(i) Burden of proof in Article 21.5 compliance panel
proceedings
(j) Burden of proof in Article 22.6 arbitrations
E. Private
Counsel
1. Presence of private counsel in oral hearings
2. Confidentiality concerns
3. Conflict of interest
F. Judicial
Economy
1. Legal basis for the exercise of judicial economy
2. Exercise of judicial economy with respect to
arguments
3. No obligation to exercise judicial economy
4. Requirement for a panel to state it is exercising
judicial economy
5. “False” judicial economy
G. Amicus
Curiae Briefs
1. Access to the dispute settlement process by
non-WTO members
2. Authority to admit amicus curiae briefs
3. Appellate Body additional procedure for amicus
curiae briefs
4. Admission/rejection of amicus curiae briefs
XXXVII. Time-Frames in Relation to Panel and Appellate Body Reports
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